NINTH CIRCUIT JOINS OTHERS IN UPHOLDING ARBITRATION CLAUSES.

Reversing an earlier decision, the U.S. Ninth Circuit Court of Appeals joined the other circuits Sept. 30 in holding that Title VII of the Civil Rights Act doesn't bar employers from imposing mandatory arbitration agreements as a condition of employment.

The court's 1998 decision in Duffield v. Robertson Stephens & Co., "stands alone. All of the other circuits have concluded that Title VII does not bar compulsory arbitration agreements," Judge Wallace Tashima wrote for the 8-3 majority in Equal Employment Opportunity Commission v. Luce, Forward, Hamilton & Scripps (00-57222, 01-55321).

"Although Duffield distinguished compulsory from voluntary arbitration," he wrote, "we now join several other circuits in concluding . . . that the right to jury trial presents no bar to compulsory arbitration."

Donald Scott Lagatree was refused employment as a legal secretary by the Luce Forward law firm when he refused to sign an agreement to submit any dispute to binding arbitration under the Federal Arbitration Act. He sued in state court, alleging violation of public policy and the California Unfair Competition Law.

While his case was pending in state court, he filed a discrimination claim with the EEOC, which sought an injunction in federal court barring Luce Forward from using mandatory arbitration agreements.

U.S. District Judge Florence Marie Cooper granted the injunction, and the EEOC appealed to the Ninth Circuit. A three-judge panel reversed the ruling, but the court agreed to rehear the case en banc.

The majority reasoned that in a 1991 case, Gilmer v. Interstate/Johnson Lane Corp., the U.S. Supreme Court had ruled that compulsory arbitration clauses could be enforced under the Age Discrimination in Employment Act, which explicitly provides for jury trials.

Although Congress could have reversed that ruling in amending civil rights law later in 1991, Tashima wrote, it didn't do so. And since Gilmer, all the other circuits have ruled mandatory arbitration agreements don't violate Title VII.

Tashima was joined in the majority by Judges Pamela Ann Rymer, Barry Silverman, Susan Graber, Margaret McKeown, William Fletcher, Richard Tallman and Richard Clifton.

Judge Harry Pregerson dissented, joined by Chief Judge Mary Schroeder and Judge Stephen Reinhardt.

Pregerson said Duffield was correctly decided, and by overruling it "the majority opinion allows employers to force their employees to choose between their jobs and their right to bring future Title VII claims in court. That choice is no choice at all."